Supermaxing the Brain

Professor Berman over at Sentencing Law and Policy has this post on this week’s Time magazine’s feature article on supermax prisons. Professor Berman quotes the Time piece:

Modern science has confirmed this, with electroencephalograms showing that after a few days in solitary, prisoners' brain waves shift toward a pattern characteristic of stupor and delirium. When sensory deprivation is added ... the breakdown is even worse.

What is notable here is that, once again, the popular press and even legal scholars misunderstand how to interpret neuroscience results. There are likely many times during the day when everyone’s brain waves would show a pattern of stupor and delirium. EEG’s reveal brain activity, but they cannot be used exclusively to diagnose. The implication in the Time piece is that supermax prisons are so horrendous that inmates invariably descend into madness. Time proffer’s of the EEG data seems to solidify this conclusion with the certainty of science. Yet, EEG waves “characteristic” of stupor should be accorded little weight as evidence of this claim. Brain waves similar to stupor can appear frequently during “normal life” outside of prison.

There is some evidence, however, that on-going sensory deprivation can lead to severe psychological distress as the Time piece continues:

As long ago as 1952, studies at Montreal's McGill University showed that when researchers eliminate sight, sound and, with the use of padded gloves, tactile stimulation, subjects can descend into a hallucinatory state in as little as 48 hours.

But there are two problems here:

1. supermax prisons do not eliminate sight, sound, and tactile stimulation;
2. supermax prisons were born out of a need to control very violent inmates; what is the alternative?

As someone who has worked in numerous prisons as a psychologist, I offer a few observations from my experience:

1. I have always been struck by the fact that in most jails and prisons it seems anarchy is but a moment’s step away. Profanity, overt verbal aggression, gangs, and a general sense of chaos permeates the institutions. How this becomes a house of corrections is beyond me. But what can the staff do?

2. There’s a lot of talk these days about how many inmates have mental illness. I disagree. It is true that there are some inmates with mental illness, but most have emotional problems, personality disorders, and a lack of maturity. These folks can probably be helped with psychotherapy, but the notion that they are ill is misplaced. Mild depression, insomnia, and anxiety are normative experiences while facing time in the big house.

3. What most inmates desperately need are good social peers. I think prison ministries are an excellent idea and have witnessed their positive outcomes. I’m perplexed at the tremendous opposition to them. Surely, these programs offer more than our current approach of GED’s-for-all plus $5.00 for bus fare.

Finally, we should never condone cruel treatment or conditions for any inmate, however heinous his crime. On the other hand, whether supermax prisons represent “torture” seems to me a bit far fetched.

3 Comments

Perhaps Professor Berman will have a few moments to respond to the points you raise: (a) without proofs generated by the scientific method to back up the "scientific" claims in the Time article, should legal scholars forego offering opinions on the ethics of solitary confinement? (b)If solitary confinement was earned by the inmate due to unrestrained violent behavior, how should the impact of isolation on the inmate's personality be weighed against the physical safety of other inmates and guards?

In the meantime, could you offer a few observations about the scientific foundation for claims that brain abnormalities/damage cause violent behavior such that the actor should be relieved of criminal responsibility, and that PET scans, EEG's or whatever else can detect a discrete and unique brain abnormality that would cause violent behavior?

Middleamerican: I have no problem with legal scholars offering their opinions on these matters (and I most admire Prof. Berman’s work). What matters here is that the quote from Time magazine offered a false sense of scientific certainty. This is becoming commonplace these days, with many scholars and media venues offering neuroscience data as “proof” for various claims. But neuroscience is a tricky thing because it ventures into areas of the metaphysical mind. Additionally, there’s so much about the brain that we simply don’t understand well.

Contrary to many popular claims, my experience was that inmates earned their way to solitary confinement. It’s expensive to keep people in “administrative segregation” and few staff members enjoy working there. But there are simply people for whatever reason are so violent and out of control that they must be housed separately from the general population. Is this ideal? No. But until someone comes-up with a better way, it’s a necessity. I don’t think we should intentionally cause “damage” to anyone’s personality, but I’m afraid that for most inmates, that damage was done long before they came to prison.

In terms of EEGs/fMRIs/PET imaging for criminal responsibility: We do not have a sophisticated understanding of how the brain works for these tools to be used in forensic psychology yet. A damaged lobe is not the same as not knowing right/wrong at the time of offense. Brain imaging can provide some useful information about a person's brain functioning, but since criminal liability doesn’t lie with brain functioning but instead rests upon normative questions of right and wrong (the “moral capacity” test described in Clark v. Arizona), this information is not dispositive on culpability issues.